Ten Common Ways Employers Illegally Deny Employees Overtime

By
Barrett & Farahany LLP
|October 31, 2017

Employers Do Not Pay Salaried Employees Overtime
Most employees believe that if they are salaried, they are not entitled
to overtime. This is simply not true. Whether an employee is entitled
to overtime is based on the job duties the employee performs — not
how the employee is paid.

Employers Do Not Pay for Working Through Lunch or for Time Off the Clock
As the work day has lengthened, so must the pay for work. Employees no
longer work from 9-5. They work longer hours, work through lunch, come
in early, stay late and often work from home. All of this time is time
worked and must be paid by the employer. If the employer has told you
to come to work but not clock in, or has changed your hours, you are still
entitled to pay for the hours you worked.

Employers Do Not Pay Workers Who Make Less than $23,600 Overtime
Employees who make under $23,600 per year are entitled to overtime, except
for teachers, doctors and lawyers. Many employers, especially in the food
industry, pay employees less than $23,600 per year but tell the employees
they are not entitled to overtime.

Employers Pay Comp Time or Flex Time
An employer cannot substitute “comp time” for overtime pay.
Unless your employer is the government, it must pay you time and a half
for hours worked over forty in a workweek.

Employers Do Not Pay Commissioned or Piece Rate Employees Overtime
An employee who is paid on a commission or piece rate basis must be compensated
at time and a half of the regular rate. Many employers pay the same amount
for work done inside the forty hour period as well as work outside the
forty hour period. An outside sales employee can be paid strictly on a
commissioned basis, but only if the work is usually done away from the
employer and at the customer’s site.

Employers Do Not Pay for “Unapproved” Overtime
An employer cannot tell you that it will not pay for time that you worked
over forty in a week. If you worked it, the employer must pay you for
it. If your job takes more than forty hours to fulfill, and the employer
knows or should know that, you are still entitled to be paid for the work
you have done — regardless of whether the employer has given you
pre-approval for it.

Employers Dock Employees’ Pay
If an employer docks your pay, you are probably not paid on a salary basis.
Look to see whether the employer has a specific written rule about the
docking of pay. If not, you are most likely entitled to be paid overtime
because you are an hourly employee — even if you believe that you
are a salaried employee.

Employers Pay the Same Rate For More Than 40 Hours in a Week
Employers will sometimes pay for hours worked over 40 — but only
at the same rate as the regularly hourly rate. An hourly employee who
works more than 40 hours is entitled to time and a half times the regular
rate for those hours worked after 40.

Employers Pay Only 40 Hours No Matter How Many Hours Worked
Many employers will pay employees 40 hours, regardless of the amount of
time worked. Unless an employee is paid a set salary that does not change
each week — and the employee also meets one of the few exemptions
— the employee must be paid for the time worked.

Employers Misclassify Employees as Exempt When They are Not
To be an exempt, an employee typically has to be paid on a salary basis.
But that is not all — an employee must also meet all the tests of
an exemption. The three major exemptions are administrative, executive
and professional. To qualify as an executive employee, an employee’s
primary duty must be management and the employee must also supervise at
least two employees. Many “managers” do not have a primary
duty of management, but instead must also make sales or do the work of
the business. The administrative exemption is also often misused. An employee
is only an administrative employee if working on the operations side of
the business, such as marketing or accounting — and only if the
employee is able to make significant financial or business decisions.

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